87th LegislatureState HouseState SenateTexas Legislative Session Ends Without Major Reform to Governor’s Emergency Powers

Though piecemeal legislation was approved to address certain aspects of the COVID-19 pandemic in Texas, no significant checks on the executive branch were created.
June 2, 2021
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When the Texas legislature ended its regular session in 2019 without renewing the board that issues plumbing licenses, Gov. Greg Abbott extended the agency’s life through executive order by making use of a seemingly obscure part of state law: the Texas Disaster Act.

Placed in Chapter 418 of the Texas Government Code, the Disaster Act authorizes the governor to respond to natural disasters like hurricanes and opens the door for emergency funding.

But over the past 14 months, the Disaster Act has been put in the limelight as it has been the basis of Abbott’s dozens of executive orders to address the COVID-19 pandemic.

Critics of Chapter 418 argue that the law yields too much power to the governor and that the legislature — which cannot constitutionally convene without a call from the governor beyond the 140 days it meets every two years — needs to have more checks over the emergency powers of the executive branch.

Two different approaches were taken by the Texas House and Senate this legislative session, but with the deadline to pass bills now over, neither of the proposals will be sent to the governor.

The Texan Tumbler

House Bill (HB) 3 from Rep. Dustin Burrows (R-Lubbock) would have created a new chapter in the government code right beside the Disaster Act titled the “Pandemic Response Act” that would have outlined how the state could handle a future pandemic.

Though it originally did not include new legislative checks, the version eventually adopted by the lower chamber added in a provision requiring the legislature to approve certain policies, such as business closures, and would require the legislature to convene in order for the governor to renew a pandemic disaster declaration beyond 90 days.

The legislative checks added to HB 3 only applied to pandemic disasters, though, and not the other disasters that could be declared under Chapter 418 — which by definition is broad enough to include “the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or man-made cause.”

While HB 3 would have established a more detailed response to pandemics, the Senate approach led by Sen. Brian Birdwell (R-Granbury) was to reform the Disaster Act more directly to require legislative approval to renew any widespread disaster declaration beyond a certain number of days.

Birdwell first put his measure in a constitutional amendment that would require public approval, Senate Joint Resolution (SJR) 45 and its enabling legislation of Senate Bill (SB) 1025, and both pieces of legislation were approved by the Senate with only Sen. Sarah Eckhardt (D-Austin) voting in opposition.

After SJR 45 and SB 1025 died in the House State Affairs Committee, Birdwell substituted the text of HB 3 with language similar to his proposal.

The Senate again approved Birdwell’s bill in the shell of HB 3 with near-unanimous approval.

When the legislation returned to the House, Burrows rejected the Senate changes and sent the bill to a conference committee, but no agreement was reached between the two chambers.

Without a single, comprehensive response to the events of the past year surrounding COVID-19, the legislature adjourned having approved only a patchwork of bills to address some of the concerns raised during the pandemic.

Legislation that has been approved by members of both chambers and is headed toward the governor’s desk includes:

  • Measures, including a constitutional amendment, to prohibit the closure of religious services;
  • Liability protections for businesses that operated during the pandemic;
  • Closing a loophole that allowed property taxes to be raised up to eight percent for declared disasters that do not cause physical damage;
  • Allowing visitations at hospitals and permitting residents of long term care facilities to have a designated “essential caregiver” whose visitation rights are protected;
  • Removing a provision in the Disaster Act so that firearms cannot be regulated under a disaster declaration;
  • Tightening open records laws so that open records requests are still required to be processed when a governmental body is able to work, even remotely, and has access to the requested records.
  • Prohibiting the suspension of “nonelective medical procedures” under the Texas Disaster Act;
  • Prohibiting the use of COVID-19 “vaccine passports;”
  • Requiring legislative approval of the renewal of a public health disaster under Chapter 81 of the Health and Safety Code through the use of a “legislative public health oversight board” that consists of the lieutenant governor, speaker of the House, and 12 other legislators.

Update: This article was updated to include reference to SB 966 and SB 968.

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Daniel Friend

Daniel Friend is a reporter for The Texan. He participated in a Great Books program at Azusa Pacific University and graduated in 2019 with a degree in Political Science. He has studied C.S. Lewis’s science fiction trilogy and in his spare time you might find him writing his own novel partly inspired by the series.